OPINION OF THE COURT
Fоr other crime evidence to be admissible on the issue of identity, the identity of defendant as the perpetrator of the
I
On December 12, 1978, Lettie Pinney, a teller at the Central Avenue branch of Home Savings Bank in Albany was handed a large manila envelope upon which there was a letter-size white envelope covered by a yellow withdrawal slip. She approximated the height of the man who handed it to her as over five and a half feet and his age as in his twenties, and testified that he had a light brown moustache, a dark colored knit hat pulled down almost to his eyebrows, a dark colored scarf pulled up to his chin, wore a tan coat and a knit glove on the hand with which he handed her the envelope, and carried a dark colored rectangular briefcase under his arm. Another bank customer, standing in the line of the teller next to Ms. Pinney, saw the note being passed, but as he turned toward that line the man was halfway to the door. He described the man as approximately six-feet tall, wearing a dark scarf that hung down his back and had come completely around his face, and a dark, loosely fitting coat that came down to between his waist and his hips. However, at the trial neither the teller nor the customer was able to identify defendant as the individual who presented the note, and the video tape pictures taken by the bank’s surveillance cameras were too blurred and the portion of the perpetrator’s face too limited to permit positive identification from them.
Printed on the white envelope was:
"this is a holdup
"your life is in
"danger
"put 100s 50s 20s in bag
"keep hands in sight
"at all times”.
After the presentation of Ms. Finney’s testimony, the People moved under People v Molineux (
"THIS IS A HOLDUP!
"YOUR LIFE IS IN
"DANGER
"PUT 100s 60s 20s IN BAG
"REMAIN CALM FOR
"YOUR OWN SAFETY”.
She placed $1,830 in the manila envelope and as the man walked away activated the bank’s surveillance camera. She was, however, unablе to identify defendant as the robber and the surveillance photographs, introduced in evidence, were, like those from the Home Savings incident, either blurred or of too limited a portion of the perpetrator’s face to permit identification.
Testimony was also presented, through a State Police document analyst, that the hаnd printing on both of the notes was
Defendant introduced testimony of his roommate and another student that at the time of the Home Savings robbery attempt defendant was in his dormitory room reading a book and conversing with other students. He also presented the expert opinion of the retired deputy director of the State Identification and Intelligence System that the fingerprints taken from the Home Savings envelopes did not provide sufficient ridge characteristic datа upon which to base an identification against an inked print and that none of them were identifiable as those of defendant.
The jury found defendant guilty of attempted robbery in the third degree (Penal Law §§ 160.05, 110.00). On appeal to the Appellate Division, that court affirmed in an opinion (
II
The Molineux rule excludes evidence of uncharged crimes when the danger that the jury may, on the basis of such testimony, convict, even though not convinced of defendant’s guilt of the crime charged beyond a reasonable doubt, is not overcome by the probative value of the prior crime evidence in relation to the crime now charged (People v Ventimiglia,
What has not been sufficiently established by our case law is the degree to which defendant’s identity as the perpetrator of the uncharged crime must be established in order to make proof with respect to it admissible. Molineux stated the obvious in noting that (
Wigmore, Evidence (Chadbourn rev ed) appears to accept a conclusivenеss standard (vol 2, at 259 ["To identify a defendant as the perpetrator of the crime charged, it may become necessary to show former conduct of his, known to be the conduct of the perpetrator”] [emphasis supplied]), while the Second Circuit, at least with respect to willfulness, has held that a preponderance standard is sufficient (United States v Leonard, 524 F2d 1076, 1091, cert denied
Neither the Federal Rules of Evidence (rule 404 [b] [in 28 USC Appendix]) nor the proposed New York Code of Evidence (§404 [b]) indicates the precise standard for admissibility of other crime evidence to prove identity, but the majority of Federal cases that have considered the question have analyzed it in terms of the Trial Judge’s discretion and in that context have held that the proof as to the uncharged crime must be.
Commentators are likewise in disagreement. McCormick, Evidence (3d ed) states that guilt of the other crime need not be proved beyond a reasonable doubt, thus disagreeing with Wigmore, but then notes that the applicable standard "is variously described, including 'substantial’ and 'clear and convincing’ ” (§ 190, at 564). And the authors of Lempert аnd Saltzburg, A Modern Approach to Evidence (at 222-224 [2d ed]), disagree between themselves as to whether clear and convincing or preponderance is the proper measure, and whether the same standard should be applied in all cases in which other crime evidence is sought to be introduced.
To make evidence of а prior uncharged crime relevant, there must be more than a unique method involved, for, as Molineux long ago stated, "the naked similarity of * * * crimes proves nothing” (
Prejudice involves both the nature of the crime, for the more heinous the uncharged crime, the more likely that jurors will be swayed by it, and the diffiсulty faced by the defendant in seeking to rebut the inference which the uncharged crime evidence brings into play (see, People v Bay,
The foregoing analysis leads us to conclude that a Trial Judge who admits evidence of an uncharged crime on the issue of identity on less than clear and convincing proof of both a unique modus operandi and of defendant’s identity as the perpetrator of the crime abuses his discretion as a matter of law. And applying that standard, no other conclusion is possible than that the evidence of thе Central Savings holdup, for which at the time of defendant’s trial on the Home Savings attempted robbery he had not been tried, was erroneously admitted. Indeed, the People’s offer of the evidence was correctly characterized by defendant’s trial attorney as a bootstrap attempt, for the evidence connecting defendant with the Central Savings robbery was even more tenuous than that “identifying” him as the Home Savings perpetrator. No fingerprints, however inconclusive, were obtained from the Central Savings envelopes, nor was anyone there present able to identify defendant. Although the clothing was similar and was similarly positioned and the Central Savings robber was of gеnerally similar physique as the Home Savings perpetrator and passed a similarly worded note, the only evidence that could be said to relate defendant to the Central Savings robbery was the expert testimony that the hand printing on the two notes was the same as was present on the college applications defendant filled out. Whether that evidence alone, if wholly undisputed, would be a sufficient predicate for admission of the Central Savings evidence (cf. Matter of Sylvestri,
Becausе the issues may be expected to arise again upon a new trial, we comment briefly on defendant’s contentions that the jury pool was tainted by the exclusion of college students; that his motion to suppress the physical evidence seized from his dormitory room was improperly denied; and that the circumstantial evidence charge given, and to which defendant excepted, was inadequate.
As to the jury pool, the Appellate Division correctly held that there was no showing that college students as a particular group were deliberately excluded from the pool (People v Shedrick,
The warrant for the search of defendant’s person and dormitory room was issued on the basis of an affidavit which detailed the Home Savings incident and stated that a fingerprint lifted from the note had been positively identified as defendant’s left middle finger, and that a SUNYA police officer had stated that defendant fit the description of "the suspect.” It specified the property sought as a maroon knit hat, brown scarf, blue nylon ski parka with silver snaps, dark briefcase, black leather gloves, manila and white envelopes and brown crepe-soled work shoes. The bases of defendant’s motion to suppress were that the application did not specify, as required by CPL 690.10 (4) and 690.35 (2) (b), that the property sought constituted evidence of the Home Savings offense (indeed, the People conceded at the suppression hearing that the articles of clothing sought related to the Central Savings robbery and were not connected to the Home Savings incident) or that there was reasonable cause to believe that the items sought could be found in defendant’s dormitory room. The suppression Judge held that there was рrobable cause and that the briefcase, manila envelopes and plain white envelopes were of direct evidentiary value in relation to the Home Savings incident. He deferred ruling as to the clothing items until trial, but they ultimately were admitted.
As we held in People v Hanlon (
The more troublesome question involves the failure to inform the issuing magistrate that some of the items sought were involved not in the Home Savings incident upon which the application was based but in an entirely separate incident. While we certainly do not condone that failure, we agree that, under the severability principle stated in People v Hansen (
For the foregoing reasons, the order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge Wachtler аnd Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.
Order reversed, etc.
Notes
. Whether the jury must be explicitly instructed as to defendant’s identity as perpetrator of the uncharged crime, as is done with respect to handwriting (People v Molineux,
. Defendant also contends that evidence concerning his gambling and failurе to repay loans involved other crimes and was unfair. We need not pass on the question, for it related to the Central Savings Bank robbery, evidence as to which will be inadmissible on retrial unless the People are able to present additional evidence as to the identity of defendant as its perpetrator.
. In view of the retrial we dо not pass upon the People’s harmless error argument except to note that the suggestion that exhibit 20, a cap, was owned not by defendant but by his roommate, not having been made at the suppression hearing, cannot now be urged (People v Havelka,